Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant's election without traverse of Group I-A (claims 1-7) in the reply filed on 4/20/26 is acknowledged. Claims 8-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected group, there being no allowable generic or linking claim.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “ring mechanism” and “retention element” in claim 6.
The following 3-Prong Test is used to detail the invocation of 35 U.S.C. 112(f) pertaining to the aforementioned limitation:
The generic place holders “mechanism” and “element” are identified as a replacement for the generic “means for,” and is not indicative of any specific known, limiting feature.
“mechanism” and “element” are modified by the functional language “configured to removably engage with the aerosol can.” The generic placeholders are set forth by the function it performs.
A lack of sufficient structure for achieving the claimed function follows the aforementioned limitation.
Thus, claim 6 is given a broadest reasonable interpretation set forth by the applicant’s Specification and equivalents – described in applicant’s [0027]-[0031] and [0035].
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections – 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-7 are rejected under 35 U.S.C. 112(b) as being indefinite.
Claim 1 (and claims 2-7 by dependency):
“each tab of the pair of tabs is positioned to restrict engagement with a corresponding pad of the pair of opposing pads…” (claim 1) – It is unclear what is meant by “restrict engagement.” In particular, it is unclear whether the phrase requires that the tabs physically impede user access to the pads, prevent actuation of the pads, or merely prevent the pads from performing their intended function of releasing the cap from the aerosol can. For purposes of examination, the phrase is interpreted broadly as meaning that the tabs are positioned such that, while intact, the pads are prevented from performing their intended cap removal function.
“a corresponding pad of the pair of opposing pads” (claim 1) – It is unclear what each recited pad corresponds to. Specifically, it is unclear whether each pad corresponds to one of the tabs, to the other pad of the pair of opposing pads, or to some other structure. The examiner recommends expressly describing the corresponding objects – for example, if this is applicant’s intent, convey that each tab corresponds to a particular pad. For purposes of examination, the phrase is interpreted as referring to one of the pads within the recited pair of opposing pads as corresponding to the other.
“a pair of tabs positioned relative to the sidewall and outward relative to the pair of opposing pads” (claim 1) – The relative term “outward” fails to provide an objective boundary for determining the spatial relationship between the tabs and the pads. In particular, it is unclear whether “outward” refers to a radial, axial, circumferential, or other direction. For purposes of examination, the phrase is interpreted as requiring that the tabs be positioned radially outward of the pads when the cap is viewed in plan view.
35 USC § 102 Rejection
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Appal (US 4,962,864).
Regarding claim 1, Appal discloses a tamper evident cap (2) configured to engage with an aerosol can, the tamper evident cap comprising:
a sidewall (inside of 8) and a top surface (inside of 6), the sidewall and the top surface define an inner cavity (interior of cap 2 bounded by 6 and 8);
a pair of opposing pads (29, 30) movably positioned relative to the sidewall and configured to release the tamper evident cap from the aerosol can;
and a pair of tabs (22, 24) positioned relative to the sidewall and outward relative to the pair of opposing pads (when looking down on cap 2, items 22 & 24 are outward from items 29 & 30), wherein each tab of the pair of tabs is positioned to restrict engagement with a corresponding pad of the pair of opposing pads (each tab-like portion (22, 24) of removable member (14) is positioned such that, while member (14) remains intact, the pair of opposing squeeze pads (29, 30), which correspond as opposing pads to one another, cannot function as intended to release and remove the cap from the aerosol can; it should be noted that the claim does not require that “each tab” correspond to “a corresponding pad of the pair of opposing pads”), wherein each tab of the pair of tabs is at least partially removable from the sidewall (2:44-46).
Regarding claim 2, in addition to the limitations in claim 1, Appal further discloses wherein the pair of tabs are removable from the sidewall without the use of a tool (1:24-26; 1:68-2:2; 2:47-48).
Regarding claim 3, in addition to the limitations in claim 1, Appal further discloses wherein each tab and the corresponding pad define a gap therebetween (distance between 22/24 and 29/30), wherein the gap is sized to fit at least a portion of a user's finger (distance is inherently capable of fitting an undefined portion of a finger).
Regarding claim 4, in addition to the limitations in claim 1, Appal further discloses wherein each tab of the pair of tabs further defines a frangible section (16, 18, 25-28) positioned between each tab and the sidewall, wherein each tab is removable from the sidewall along the frangible section.
Regarding claim 5, in addition to the limitations in claim 4, Appal further discloses wherein each tab and the corresponding pad define a gap that opens relative to a first edge of each of the tab and the corresponding pad, wherein the frangible section of each tab is positioned relative to a second edge of the tab (Figs. 2, 3, 4, and 7).
Claims 6 and 7 have not been fully examined with respect to the prior art because they depend from an indefinite base claim and further recite additional limitations that may require further search and consideration following amendment to the claims and before potentially marking these claims as allowable. MPEP § 2173.06.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SPE DAVID ANGWIN whose telephone number is (571)-270- 3735. The examiner can normally be reached Monday-Friday 8-5 EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at https://www.uspto.gov/interviewpractice. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent- center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DAVID P ANGWIN/Supervisory Patent Examiner, Art Unit 3754
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